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Fri Aug 9, 2019, 09:56 PM

2nd Am history: Until 1959, every law review article concluded it didn't guarantee an individ right




The NRA rewrote the 2nd Amendment with money and by picking ideologue judges.

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Reply 2nd Am history: Until 1959, every law review article concluded it didn't guarantee an individ right (Original post)
sharedvalues Aug 2019 OP
RockRaven Aug 2019 #1
sharedvalues Aug 2019 #4
Buzz cook Aug 2019 #2
jimmy the one Aug 2019 #3
sharedvalues Aug 2019 #5
sharedvalues Aug 2019 #6
guillaumeb Aug 2019 #36
jimmy the one Aug 2019 #56
friendly_iconoclast Aug 2019 #63
gejohnston Aug 2019 #7
jimmy the one Aug 2019 #8
gejohnston Aug 2019 #9
friendly_iconoclast Aug 2019 #11
gejohnston Aug 2019 #16
jimmy the one Aug 2019 #12
gejohnston Aug 2019 #14
jimmy the one Aug 2019 #19
gejohnston Aug 2019 #37
jimmy the one Aug 2019 #20
gejohnston Aug 2019 #30
jimmy the one Aug 2019 #21
gejohnston Aug 2019 #27
jimmy the one Aug 2019 #34
gejohnston Aug 2019 #39
friendly_iconoclast Aug 2019 #10
sarisataka Aug 2019 #13
sharedvalues Aug 2019 #17
sarisataka Aug 2019 #18
sharedvalues Aug 2019 #24
jimmy the one Aug 2019 #22
sarisataka Aug 2019 #23
jimmy the one Aug 2019 #25
sharedvalues Aug 2019 #29
jimmy the one Aug 2019 #28
sharedvalues Aug 2019 #32
sarisataka Aug 2019 #40
sharedvalues Aug 2019 #45
jimmy the one Aug 2019 #49
sarisataka Aug 2019 #41
jimmy the one Aug 2019 #43
gejohnston Aug 2019 #46
jimmy the one Aug 2019 #47
gejohnston Aug 2019 #48
jimmy the one Aug 2019 #50
gejohnston Aug 2019 #51
friendly_iconoclast Aug 2019 #52
jimmy the one Aug 2019 #54
friendly_iconoclast Aug 2019 #55
gejohnston Aug 2019 #57
jimmy the one Aug 2019 #58
gejohnston Aug 2019 #60
jimmy the one Aug 2019 #53
krispos42 Aug 2019 #15
guillaumeb Aug 2019 #26
sharedvalues Aug 2019 #31
guillaumeb Aug 2019 #33
sharedvalues Aug 2019 #35
guillaumeb Aug 2019 #38
sharedvalues Aug 2019 #44
gejohnston Aug 2019 #42
melm00se Aug 2019 #59
sharedvalues Aug 2019 #62
sharedvalues Aug 2019 #64
MarvinGardens Aug 2019 #61
SQUEE Aug 23 #65

Response to sharedvalues (Original post)

Fri Aug 9, 2019, 10:28 PM

1. Yup, Scalia's opinion in DC vs Heller enshrined something made up out of whole cloth

during his lifetime, and he knew it while he was doing it. These "originalists" are literally shameless. They cannot be embarrassed or shamed by facts, truth, reality, history, or reason. Totally impervious.

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Response to RockRaven (Reply #1)

Sat Aug 10, 2019, 07:06 AM

4. And Scalia in Heller literally got people killed in DC

Because the District of Columbia voters OVERWHELMINGLY want strict gun control. DC government had a handgun ban. Scalia overturned it.
Since then dozens have been killed in DC by handguns.

And I’m sorry to be so blunt, but it’s true:
Scalia and the other Republican judges contributed to those deaths. Scalia is responsible for DC deaths, all because he was in tight with Republican interests that know gun politics gets votes for Republican billionaires.

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Response to sharedvalues (Original post)

Sat Aug 10, 2019, 01:55 AM

2. Money and power

And a complacent or complicit media can change the world.

I cannot count the times the media would cover a 2nd Amendment story without letting the NRA blab their lies in order to be balanced.

It was the media's job to call bullshit on those lies. Instead they gave them equal weight with the facts.

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Response to sharedvalues (Original post)

Sat Aug 10, 2019, 05:08 AM

3. 1939 scotus miller decision

The problem today with the 2nd Amendment is the 2008 supreme court 'heller' decision, involving a gun owner who was stripped of his guns due to a restraining order. He appealed, it went to supreme court, where presto chango 2ndA became an individual right (rkba - right to keep, bear arms), despite centuries of precedent having established it as a militia based right (based on england's 1689 'have arms' decree within their bill of rights signed by WM & Mary after the glorious revolution).

However, the previous most recent supreme court 2ndA decision was in 1939 when scotus had a similar case involving one jack miller & his accomplice frank layton, who crossed a state line with an illegal sawed off shotgun & claimed 2ndA protection. It ended up in supreme court, and the court ruled against miller (even tho he had died by then), citing the following opinions, within my summary:

The 2008 supreme court heller ruling was a political verdict, 5-4, and a subversion of the 2nd amendment by right wing demagogue justice scalia.
In 1939 the supreme court previously 'last' ruled on the 2ndA prior to heller, a unanimous 8-0 ruling (one recusal since new arrival) and offered these interpretations:

The Constitution, as originally adopted, granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

https://supreme.justia.com/cases/federal/us/307/174/case.html

1939 miller cont'd, my edits: In the absence of any evidence tending to show that possession or use {by jack miller} of a "shotgun having a barrel of less than 18 inches in length" at this time has some reasonable relationship to the preservation or efficiency of a {current} well regulated militia, we cannot say that the Second Amendment guarantees the right {of jack miller} to keep and bear such an instrument

This 1939 supreme court ruling on miller was UNANIMOUS. Not one justice felt the above wording to be wrong or misleading about any individual rkba, they clearly called it for the militia interpretation. Not one justice thought 'whoa fellow justices, look how we worded that, future generations are gonna think we're ruling for a militia interpretation'. Nope, all thought it was proper wording, that it was indeed a militia interpretation.
{.. Note, the 9th recused justice later wrote a book or paper supporting gun control.}

Tack on an amicus brief citing adams, by the US justice dept in 1938 to the 1939 supreme court re miller: In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment, the contention was summarily rejected as follows:
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It {2ndA} refers to the militia, a protective force of government; to the collective body and not individual rights.
http://www.guncite.com/miller-brief.htm

Scalia kicked stare decisis (scotus bound by previous interpretations handed down thru the years), in the ass & the right wing put him on a pedestal.
The Militia Act of 1792, coming a mere 5 months after the 2ndA was enacted in bor, was intended to define what the 2nd amendment described - the well regulated militia part, how to drill when to meet. The Militia Act of 1792 was superseded under Teddy Roosevelt circa 1903, disestablishing the citizen's militia part & replacing the 1792 act with the US militia code which established the national guards & the unorganized militia.

US Militia code, circa 1903 under teddy roosevelt: 10 U.S. Code § 246 - Militia: composition and classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age.. et cetera:
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

https://www.democraticunderground.com/?com=view_post&forum=1172&pid=206865

Note in class 2, the unorganized militia (99% of americans belong or belonged or will belong) does not meet the requirements of the 2nd amendment, in that, by definition, an unorganized militia is NOT well regulated. It could not possibly be what madison intended in 1791.
There is no 'well regulated' citizens militia today as envisioned by the bill of rights, the 2nd amendment is obsolete & antiquated. But still loved by gunnuts, as a false god.

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Response to jimmy the one (Reply #3)

Sat Aug 10, 2019, 07:08 AM

5. Can we change the name of this forum? "Gun control and made-up Republican RKBA"?

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Response to jimmy the one (Reply #3)

Sat Aug 10, 2019, 07:08 AM

6. Or better "Gun control and our well-organized militia"

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Response to jimmy the one (Reply #3)

Sat Aug 10, 2019, 08:27 PM

36. Consider this possibility:

The reason that early Americans needed guns was not just for hunting.

It was not primarily for protection.

It was so Americans would have the means to put down a slave rebellion.

Especially in the slave states, where often slaves outnumbered free persons.

I believe that S. Carolina instituted the first police force, and its primary responsibility was controlling slaves.

All of this talk about an individual right is refuted by the actual fact that the Founders made no provision for any standing or permanent army. Thus the wording of a well regulated militia.

So my contention is that all of this individual right argument has its foundation in fear of a slave revolt.

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Response to guillaumeb (Reply #36)

Mon Aug 12, 2019, 05:49 AM

56. 2ndA and slavery

guillaume: The reason that early Americans needed guns was not just for hunting.
It was so Americans would have the means to put down a slave rebellion.
Especially in the slave states, where often slaves outnumbered free persons.

.. my contention is that all of this individual right argument has its foundation in fear of a slave revolt.

That certainly could have had to do with embracing a militia amendment in the south. The theory
has been around as I am sure you know, but I cannot go as far as your tailing about being the 'foundation', since the individual vs militia dichotomy did not manifest until the early 1800's; prior that the 'citizens militia' concept envisioned by madison & the militia act of 1792 were generally being adhered to, altho support gradually insidiously weakened, & the dichotomy took hold by 1820s. Those supporting the citizens militia vs scofflaws (of militia act 1792) who felt they had the individual rkba without needing participate in military drills nor service. Who me? risk getting killed? no way jose, but 2ndA says I can keep & bear arms to my hearts content. Gee, just like today, with better & more lethal guns.

I think the foundation of 2ndA lies in tracing its roots back to the english 'have arms decrees' esp from the english bill of rights 1689. The supreme court in 1939 ruled on a 2ndA case (jack miller) and made many references to the origins of militias, including this (defence spelled with a 'c' meant 'collective defense' in old english):

1939 Miller decision: "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.

Note the wording above 'assize of arms' within what the 1939 supreme court wrote re miller case.

The Assize of Arms of 1181 was a proclamation of King Henry II of England concerning the obligation of all freemen of England to possess and bear arms in the service of king and realm and to swear allegiance to the king, on pain of "vengeance, not merely on their lands or chattels, but on their limbs".
The assize stipulated precisely the military equipment that each man should have according to his rank and wealth. The assize effectively revived the old Anglo‐Saxon fyrd {militia style} duty. The Assize established restrictions on weapon ownership by Jews, terms of inheritance, and prohibition of exports of arms, ships and timber.
https://en.wikipedia.org/wiki/Assize_of_Arms_of_1181
https://www.democraticunderground.com/?com=view_post&forum=1172&pid=208483

miller decision outtakes: https://www.democraticunderground.com/?com=view_post&forum=1172&pid=208422

british refute scalia/heller: https://www.democraticunderground.com/?com=view_post&forum=1172&pid=208465

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Response to guillaumeb (Reply #36)

Mon Aug 12, 2019, 07:57 PM

63. It's been considered here several times before, and shown to be false

https://www.theroot.com/2nd-amendment-passed-to-protect-slavery-no-1790894965

2nd Amendment Passed to Protect Slavery? No!

Note that the above was written by an actual law professor, and not a graduate of The University Of What Somebody
Claimed On The Internet, and published on a decidedly left-leaning African-American website

https://en.wikipedia.org/wiki/Paul_Finkelman

Finkelman grew up in Watertown, New York, where he attended public schools. He received his undergraduate degree in American studies from Syracuse University in 1971, and his master's degree and doctorate in American history from the University of Chicago in 1972 and 1976. At Chicago, he was a student of Stanley Nider Katz and John Hope Franklin and a contributor to the volume, The Facts of Reconstruction: Essays in Honor of John Hope Franklin, edited by Eric Anderson & Alfred A. Moss, Jr. (Baton Rouge: Louisiana State University Press, c.1991). Finkelman was also a Fellow in Law and Humanities at Harvard Law School, 1982–83.

...He received fellowships from the National Endowment for the Humanities, the American Philosophical Society, the Library of Congress, Yale University, Harvard Law School, and the American Council of Learned Societies. American institutions at which he was a resident scholar include: Transylvania University, Mississippi State University, the University of Seattle School of Law, and St. Bonaventure University. In 2009, Finkelman gave the Nathan A. Huggins lectures at the W.E.B. DuBois Center at Harvard University. His 2018 book Supreme Injustice: Slavery in the Nation's Highest Court[2] was based on these lectures...

Finkelman has also written numerous entries for encyclopedias and reference works. More than eighty short book reviews he has written have appeared in a wide variety of scholarly journals. His essays, op-eds and blogs have been published in the New York Times, The Washington Post, USA Today, The Baltimore Sun, the Huffington Post, theRoot.com, and other non-scholarly avenues. Among them have been about Thomas Jefferson's relationship with slavery[19] and several concerning the American Civil War in the Disunion section of the New York Times' The Opinionator blog.[20] While at the SUNY Binghamton, Finkelman edited the 18-volume Articles on American Slavery, collecting nearly 400 important articles on slavery in the United States, which Garland Publishing published in 1989...


In case the above hasn't made it clear, Finkleman is no fan of Thomas Jefferson or the slave states:

https://www.timeshighereducation.com/news/thomas-jefferson-statues-latest-target-campaigners-us#survey-answer



Paul Finkelman, author of Slavery and the Founders: Race and Liberty in the Age of Jefferson, said that he couldn’t judge how colleges should deal with Jefferson statues, but he said that the history is clear.

“I don't think you go around honouring people for behaviour that was truly awful, and Jefferson’s relationship with slavery and race was truly awful, even from his own times,” Finkelman said. “This is not looking back from now,” he stressed.

Finkelman, a senior fellow at the University of Pennsylvania Program on Democracy, Citizenship and Constitutionalism and the Ariel F. Sallows visiting professor of human rights law at the University of Saskatchewan College of Law, compared Jefferson with George Washington.

“George Washington ceased using white overseers to manage his plantations before he became president” and gave the positions to slaves “as a prelude to emancipating them in his will”, Finkelman said. Jefferson never took such a step. “Washington famously said that he did not take men to the market like cattle, but Jefferson sold nearly 100 slaves in the 1790s,” Finkelman said.



https://constitutioncenter.org/blog/secession-the-confederate-flag-and-slavery

https://www.nytimes.com/2012/12/01/opinion/the-real-thomas-jefferson.html?_r=0

The Monster of Monticello


Neither Mr. Meacham, who mostly ignores Jefferson’s slave ownership, nor Mr. Wiencek, who sees him as a sort of fallen angel who comes to slavery only after discovering how profitable it could be, seem willing to confront the ugly truth: the third president was a creepy, brutal hypocrite.

Contrary to Mr. Wiencek’s depiction, Jefferson was always deeply committed to slavery, and even more deeply hostile to the welfare of blacks, slave or free. His proslavery views were shaped not only by money and status but also by his deeply racist views, which he tried to justify through pseudoscience.

There is, it is true, a compelling paradox about Jefferson: when he wrote the Declaration of Independence, announcing the “self-evident” truth that all men are “created equal,” he owned some 175 slaves. Too often, scholars and readers use those facts as a crutch, to write off Jefferson’s inconvenient views as products of the time and the complexities of the human condition.
Continue reading the main story

But while many of his contemporaries, including George Washington, freed their slaves during and after the revolution — inspired, perhaps, by the words of the Declaration — Jefferson did not. Over the subsequent 50 years, a period of extraordinary public service, Jefferson remained the master of Monticello, and a buyer and seller of human beings.



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Response to sharedvalues (Original post)

Sat Aug 10, 2019, 07:23 AM

7. I would like to see them back up this claim.

and it does not matter. Law review articles do not go through any kind of peer review processes. The difference is the quality of the scholarship.

First, the Founders did not believe the State creates rights, they believed, as I do, in natural law theory of the enlightenment. That is to say, if you have it in a state of nature, the State should protect it. The Founders also believed in a limited and weak federal government.

Second, they never wrote any gun control laws, and guns are far more regulated today than then.

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Response to gejohnston (Reply #7)

Sat Aug 10, 2019, 10:05 AM

8. gun control hardly needed in 1790's

gejohnston: Second, they never wrote any gun control laws, and guns are far more regulated today than then.

They did have some rules & regulations, tacit & expressed; bayonets were generally not allowed to be attached to a musket when in town during peacetime. Concealed carry of weapons was either illicit or frowned upon.

Gun control in late 1700's would have been largely unnecessary; for one, gun ownership was limited to about 25% of the white male population (iirc, 1803 dearborn census) - because of this low ownership rate american white males were rather urged to purchase & own guns due to militia rules dictated by the militia act of 1792. One could leave his unloaded musket with buck ball & powder out all day long & the danger to his small kids would've been fingers caught in the barrel.
With single shot muskets & humidity prone ammo as the prevailing firearms there was little need to enact gun control laws as we know them today.
Your remark above that guns are far more regulated now than {1790's} is specious & straight out of 2nd amendment mythology; back then they didn't have sophisticated semi-automatic rifles, hermetically sealed ammo, magazines to hold 10, 20, 30 rounds or 100 round drums, bump stocks, silencers, compensators. I think a main safety concern would've been if you were to drop your 8 lb musket, on your toes.
Your remark is specious, since those sophisticated semi-automatics firearms of today are orders of magnitude more lethal & dangerous than the musket was then.
Gun control laws developed as a result of the evolution of modern day firearms; that you dismiss this flippantly as, presumably, to denigrate gun control efforts as some kind of tyrannical imposition to the 2nd amendment, is just another chapter from the 2nd amendment mythology bible.

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Response to jimmy the one (Reply #8)

Sat Aug 10, 2019, 11:19 AM

9. not true

They did have some rules & regulations, tacit & expressed; bayonets were generally not allowed to be attached to a musket when in town during peacetime. Concealed carry of weapons was either illicit or frowned upon.
but not banned until the 1920s outside of the South

Gun control in late 1700's would have been largely unnecessary; for one, gun ownership was limited to about 25% of the white male population (iirc, 1803 dearborn census) - because of this low ownership rate american white males were rather urged to purchase & own guns due to militia rules dictated by the militia act of 1792. One could leave his unloaded musket with buck ball & powder out all day long & the danger to his small kids would've been fingers caught in the barrel.
no evidence to support the claim, outside of an academic fraud.

Your remark above that guns are far more regulated now than {1790's} is specious & straight out of 2nd amendment mythology; back then they didn't have sophisticated semi-automatic rifles, hermetically sealed ammo, magazines to hold 10, 20, 30 rounds or 100 round drums, bump stocks, silencers, compensators. I think a main safety concern would've been if you were to drop your 8 lb musket, on your toes.
Not relevant, and semi autos existed then. Bump stocks are a joke and non issue.

Gun control laws developed as a result of the evolution of modern day firearms; that you dismiss this flippantly as, presumably, to denigrate gun control efforts as some kind of tyrannical imposition to the 2nd amendment, is just another chapter from the 2nd amendment mythology bible.
Gun control laws developed for authoritarian control, not public safety. Perfect example is Italy in 1931, Britain in the 1920s, and Japan a few centuries ago.

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Response to gejohnston (Reply #9)

Sat Aug 10, 2019, 11:35 AM

11. As you've seen, if ones' only strengths are 'repeated argument by assertion'...

...and 'sheer weight of verbiage'- well, that's what you'll stick with...

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Response to friendly_iconoclast (Reply #11)

Sat Aug 10, 2019, 01:46 PM

16. the go to after

the logical fallacies, distortions, authoritarian clap trap (you don't need), and out right lies fall flat.

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Response to gejohnston (Reply #9)

Sat Aug 10, 2019, 01:05 PM

12. then 1792, and now 2019

gejohnston: No evidence to support the claim, outside of an academic fraud.

My remarks were predicated on the dearborn census of 1803, is that what you call academic fraud?
_____________________________________

gej: Not relevant, and semi autos existed then. Bump stocks are a joke and non issue

The 1792 semi automatic, hahahahaha, johnston you a comedian today?
Reread what I wrote johnston: back then they didn't have sophisticated semi-automatic rifles
Bump stocks are indeed relevant, when compared to what they had 1792, & what we have today.
_______________________________________

johnston: Gun control laws developed for authoritarian control, not public safety. Perfect example is Italy in 1931, Britain in the 1920s, and Japan a few centuries ago.

Johnston provides proof of what I label 2nd amendment mythology.
Didn't you forget - oooo - hitler, stalin, pol pot?

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Response to jimmy the one (Reply #12)

Sat Aug 10, 2019, 01:39 PM

14. Historial fact,

I'm thinking of a certain book author. The study is probate courts, not census.

They did, and semi autos are not sophisticated in any way. Bump stocks are mall ninja toys. You obviously don't know anything on the subject.

Britain passed gun control in the 1920s because the oligarchs saw the Russian Revolution and saw a million working class men returning from the first world war, men who were drafted but did not have the right to vote. Europe saw steep drops in crime in the late 19th century, about the time small pistols were sold and carried by many people. Italy had no gun control until 1931 when Mussolini thought his popularity started to wane.

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Response to gejohnston (Reply #14)

Sat Aug 10, 2019, 03:26 PM

19. ad hoc u hoc et al hoc

gejohnston: Europe saw steep drops in crime in the late 19th century, about the time small pistols were sold and carried by many people.

That is laughable as a rebuttal. You never heard of 'correlation does not necessarily prove causation' johnston?
You surely recall your initial confusion over the phrase, yes?:

johnston's footstick: : I used the wrong one htxx:{link} which simply means coordination does not imply causation.
https://www.democraticunderground.com/?com=view_post&forum=1172&pid=146684

when I corrected your 'coordination', you replied: "Take that up with Wikipedia".
https://www.democraticunderground.com/?com=view_post&forum=1172&pid=146706

You were also aware of a similar adage:

johnston: At best, these studies are examples of post hoc ergo propter hoc.
definition: Post hoc ergo propter hoc is an informal fallacy that states: "Since event Y followed event X, event Y must have been caused by event X."

Not your finest hours johnston.
You posted several time periods in history & invalidly link them as to causation due to gun control: Europe saw steep drops in crime in the late 19th century, about the time small pistols were sold and carried by many people.

What about the unemployment rate johnston? industrial revolution?

johnston: Italy had no gun control until 1931 when Mussolini thought his popularity started to wane

Johnston cites a fascist dictator as evidence 'gun control' doesn't work when it was really authoritarian dictate which enable any italian gun restrictions, the likes of which do not equate to current american gun control efforts, or that enacted by civilized western democracies.

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Response to jimmy the one (Reply #19)

Sat Aug 10, 2019, 08:27 PM

37. I made no such claim

Muliple criminology studies show that gun control does not work. I did claim any cause and effect. Europe has "democracies" in that they pick the party owned by the sane monied intrests that don't give a shit about the voter. Also, the EU is autocratic

Can't argue facts, so you use demonization and personal attacks. That is why your side is losing.

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Response to gejohnston (Reply #14)

Sat Aug 10, 2019, 03:47 PM

20. henry dearborn's firearm census 1803

johnston: Historial fact. I'm thinking of a certain book author. The study is probate courts, not census.

Jeez johnston, go talk to a counselor or something, you are losing it. You cannot insert your thoughts to supplant what someone else is referring to as proof of his predicate, to prove your predicate.
I was referring to dearborn's firearm census of 1803, not michael bellesiles 'arming america':

dearborn's census, huffpo: During Thomas Jefferson’s administration, a more ambitious and careful national count was launched by War Secretary Henry Dearborn in 1803, covering arms held both publicly and privately. The result showed that about 45% of militia-eligible men (roughly between the ages of 18-45) had arms, or about 24% of adult white males. President James Madison’s Secretary of War, William Eustis, reported similar numbers in 1810. Censuses of firearms continued to be conducted sporadically up until the Civil War. https://www.huffpost.com/entry/upset-about-a-census-of-p_b_521389
_____________________________________________________________

Explain your contradiction johnston, between what you said in your post 7 on this thread: First, the Founders... Second, they {the founders} never wrote any gun control laws,.

and what you wrote 4/2017: We have had gun control since the founding not always for the best reason..https://www.democraticunderground.com/?com=view_post&forum=1172&pid=203112

Colleges & Govt agencies have lists of available counselors helpful in getting people back on the right track.

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Response to jimmy the one (Reply #20)

Sat Aug 10, 2019, 08:17 PM

30. Estimated ownership

Over 200 years ago not relevant for policy.

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Response to gejohnston (Reply #14)

Sat Aug 10, 2019, 04:03 PM

21. malcolm, far right wing gun guru

johnston links to a gun guru (ess): https://www.amazon.com/Guns-Violence-Joyce-Lee-Malcolm/dp/0674016084

Joyce Malcolm is a right wing pro gun author. Note other pro gun right wing authors alongside her on the amazon link - John Lott, Halbrook, Ayoob, & current far right wing fanatic nra gun moll Dana Loesch.
On amazon, you're generally known by the company you keep.

Malcolm, supposedly an english expert, was cited by scalia & the supreme court in 2008 heller. A consortium of 21 impartial British Scholars did a criticism of scalia's interpretation of british history regarding their 'have arms' decree, which foresaw the 2nd Amendment:

Where the {2008 scalia led Supreme} Court erred was by interpreting the quoted terms in a manner divorced from their historical context, reading “individual” to mean “private,” “defence” to mean “defense against harm by private individuals acting for private purposes” and equating “self-preservation” with the modern usage of the term “self-defense.” In doing so, the Court relied heavily on the scholarship of Joyce Lee Malcolm. The overwhelming consensus among leading English historians, however, is that Malcolm’s work is flawed on this point.
Amici, based on a wealth of scholarship, disagree with Malcolm’s conclusions. Contrary to Malcolm’s view, the “have arms” provision was the result of a political dispute over whether ultimate control over the militia – the fighting force composed of qualified subjects of the realm – resided with the sovereign, or in Parliament. Immediately prior to the 1662 Militia Act, Parliament, not the sovereign, held control over militia.
https://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_08_1521_RespondentAmCuEnglishHistoriansnew.authcheckdam.pdf

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Response to jimmy the one (Reply #21)

Sat Aug 10, 2019, 08:15 PM

27. Personal attack

Not a valid argument.

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Response to gejohnston (Reply #27)

Sat Aug 10, 2019, 08:21 PM

34. his rebuttals leave me almost speechless

johnston: estimated ownership Over 200 years ago not relevant for policy.

johnston: Personal attack Not a valid argument

You a nice man, johnston, a nice man.

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Response to jimmy the one (Reply #34)

Sat Aug 10, 2019, 08:29 PM

39. I honestly don't care.

You attacked the writer, not her ideas or evidence.

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Response to sharedvalues (Original post)

Sat Aug 10, 2019, 11:31 AM

10. It's sad that you and 16 other people believe that law review articles actually have legal weight

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Response to sharedvalues (Original post)

Sat Aug 10, 2019, 01:11 PM

13. A interesting article with an irredeemable flaw

The premise they state
Many are startled to learn that the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, when District of Columbia v. Heller struck down the capital’s law effectively banning handguns in the home. In fact, every other time the court had ruled previously, it had ruled otherwise. Why such a head-snapping turnaround? Don’t look for answers in dusty law books or the arcane reaches of theory.

is never proven in the article.

The key statement is "In fact, every other time the court had ruled previously, it had ruled otherwise". They go on to remark there were cases the court could have ruled there is an individual right, without naming those cases, but the court didn't affirm an individual right at that time. However what they failed to mention is that the court ruled the right is limited to militia service in any of those cases. If such a statement was not included in the ruling then the question remained unanswered.

There are two points they are trying to use to support their position. The first is that law reviews prior to 1959 stated there is no individual right contained in the 2nd Amendment. As I have neither time nor inclination I will not dispute that statement. Law reviews however do not themselves make law, nor are they a final interpretation of the law. Also after the initial mention of the law reviews the author focuses of the SCOTUS so it is rather a moot point.

The second point they are using is the statement that previously SCOTUS had ruled the 2nd is not an individual right. This they failed to support with an appropriate citation. Prior to Heller SCOTUS had not directly ruled on the question for or against.

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Response to sarisataka (Reply #13)

Sat Aug 10, 2019, 02:22 PM

17. So you agree the NRA changed the meaning of the 2nd Am

Republican political operatives and billionaires built the Federalist Society primarily to install judges that would decide for businesses and CEOs and the wealthy against the middle class. But then Republicans realized gun politics was a great way to get uneducated white people to vote for the billionaires. So voila, Republicans became in favor of changing the 2nd Amendment.

I trust that readers can see through the sophistry of your argument details.

It is nice to see, however, that you confirm ultimately that SCOTUS unanimously ruled that the right applies only to militias.

Guns in America get kids killed. Let’s ban all semiautomatics.

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Response to sharedvalues (Reply #17)

Sat Aug 10, 2019, 02:57 PM

18. I feel like a squirrel preparing for winter,

Cheeks bulging with all the words you shoved in my mouth

So you agree the NRA changed the meaning of the 2nd Am
- no in fact I definitively assert the NRA has nothing to do with determining the meaning of the 2nd Amendment. That power is reserved to the Supreme Court

It is nice to see, however, that you confirm ultimately that SCOTUS unanimously ruled that the right applies only to militias. 
- I cannot confirm a ruling that does not exist.

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Response to sarisataka (Reply #18)

Sat Aug 10, 2019, 07:19 PM

24. Shrug. The NRA is a domestic terror organization

And Republicans changed the meaning of the 2nd Amendment.

This is all pretty obvious and clear.

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Response to sarisataka (Reply #13)

Sat Aug 10, 2019, 04:40 PM

22. no irredeemable flaw, except by you

OP: the U.S. Supreme Court didn’t rule that the Second Amendment guarantees an individual’s right to own a gun until 2008, every other time the court had ruled previously, it had ruled otherwise

sarisataka: A interesting article with an irredeemable flaw.. The premise they state is never proven in the article.

The article's premise does not need be proven within the article, it needs be disproven by you if you contend the supreme court did rule for an individual rkba. Otherwise their premise is valid.
The article cannot 'prove' what it contends in a page on a magazine - it would need post relevance from the entire previous 5 supreme court cases touching on the 2nd amendment, which would take a short book.
However, since you are contending an 'irredeemable flaw' in the article, it's incumbent upon you to excerpt a sentence, a paragraph, or a link to somewhere that the supreme court in any of those 5 previous 2ndA cases, actually does refer to 2ndA as an individual right.

sarisataka: The second point they are using is the statement that previously SCOTUS had ruled the 2nd is not an individual right. This they failed to support with an appropriate citation.

Can you cite exactly where they said this, since what you posted does not back you up. They simply said the supreme court 'had ruled otherwise', which is not the same as saying it ruled no individual right. You are apparently twisting words & meanings. They ruled 'otherwise' in miller by referring to sawed off shotguns disallowed to jack miller.

sarisatake: However what they failed to mention is that the court ruled the right is limited to militia service in any of those cases. If such a statement was not included in the ruling then the question remained unanswered.

The supreme court did not 'rule' on the individual - militia dichotomy since the court ruled on the validity of the plaintiffs or defendants in the cases, Jack Miller the scofflaw, Presser the unorganized militia leader, the cruikshank kids, & the other two cases which were largely irrelevant.
The supreme court did proffer these revealing contentions in the 1939 unanimous Miller case:

The Constitution, as originally adopted, granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
https://supreme.justia.com/cases/federal/us/307/174/case.html

1939 miller cont'd, my edits: In the absence of any evidence tending to show that possession or use {by jack miller} of a "shotgun having a barrel of less than 18 inches in length" at this time has some reasonable relationship to the preservation or efficiency of a {existing} well regulated militia, we cannot say that the Second Amendment guarantees the right {of jack miller} to keep and bear such an instrument

Tack on an amicus brief citing adams, by the US justice dept in 1938 to the 1939 supreme court re miller:
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It {2ndA} refers to the militia, a protective force of government; to the collective body and not individual rights.
http://www.guncite.com/miller-brief.htm

The 1939 supreme court miller decision & the dept of justice in it's amicus brief were both on the same page in many of the opinions they expressed, demonstrating that the opinions expressed above were essentially held by both.

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Response to jimmy the one (Reply #22)

Sat Aug 10, 2019, 07:10 PM

23. Many words... I will use fewer

If a think tank wishes to publish an article without any proof to support the premise then I may dismiss their premise with an equal amount of proof.

Your comment I should support my statement of a prior ruling (ironic since you indicated the same proof was not needed in the article) would be valid, had I claimed there was such a ruling. I did not make such a claim.

Let's skip ahead to Miller-

In the absence of any evidence 

An interesting caveat as you are well aware only the Government presented arguments, Miller being deceased at that point. Clearly the Court left the decision open to further review.

"shotgun having a barrel of less than 18 inches in length" at this time has some reasonable relationship to the preservation or efficiency of a {existing} well regulated militia, we cannot say that the Second Amendment guarantees the right {of jack miller} to keep and bear such an instrument 
this judgement is rendered on, and restricted to the weapon, i.e. shotgun having a barrel of less than 18 inches in length.
It does not say Mr. Miller, who no one argued was a militia member, was unable to own a different weapon. Note my emphasis:
we cannot say that the Second Amendment guarantees the right {of jack miller} to keep and bear such an instrument

The amicus brief would be relevant if the language of the brief was quoted, or even paraphrased, in the decision. It was not.
One could infer by not incorporating the language in the decision the Court was rejecting the argument, but applying the same standard I used previously, I will not say it was rejected but left an open question, neither a supported nor rejected.

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Response to sarisataka (Reply #23)

Sat Aug 10, 2019, 08:14 PM

25. moot, miller

Supreme Court didn’t rule that 2ndA guarantees an individual’s right to own a gun until 2008, when..Heller... In fact, every other time the court had ruled previously, it had ruled otherwise.

sarisataka: If a think tank wishes to publish an article without any proof to support the premise then I may dismiss their premise with an equal amount of proof.

No no no no no. Not that I follow your tailing above, but the brennan center's article's 'premise' was intentionally equivocal to preclude what you are arguing. What in the world would you have had them do? publish the 3 relevant previous supreme court cases regarding the 2ndA to 'prove' their premise was correct? If an author writes 'the allies defeated hitler' they need not post all the campaigns which hitler lost & how 3rd reich eventually surrendered.
I repeat, if you want to challenge the validity of their premise, it is incumbent upon you, or another reputable source, to refute their premise. Their premise has not been refuted ever, which actually makes our argument moot. IE - the supreme courts had never prior to heller ruled that the 2ndA was an individual right separated from militia. I do not understand your point or your defense.
____________________________________________________

sari: you are well aware only the Government presented arguments, Miller being deceased at that point. Clearly the Court left the decision open to further review.

When someone says 'clearly' as you do above, when something is anything but clear, I am confident the person is spinning the truth. What you allege above is non sequitur, and not clear.
If Miller had lived, he wouldn't have appeared in court to say much of anything, because he had ratted on his pals & they would've killed him once they realized where they could find him (DC):

wiki: In reality, {judge in first ruling by district court, sided with jack miller} was in favor of the gun control law and {only} ruled the law unconstitutional because he {judge} knew that Miller, who was a known bank robber and had just testified against the rest of his gang in court, would have to go into hiding as soon as he was released. He {judge} knew that Miller would not pay a lawyer to argue the case at the Supreme Court and would simply disappear. Therefore, the govt's appeal to the Supreme Court would be a sure win because Miller and his attorney would not even be present at the argument
Neither the defendants {miller or layton} nor their legal counsel appeared at the Supreme Court. A lack of financial support and procedural irregularities prevented counsel from traveling. Miller was found shot to death in April, 1939 before the decision was rendered
https://en.wikipedia.org/wiki/United_States_v._Miller

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Response to jimmy the one (Reply #25)

Sat Aug 10, 2019, 08:16 PM

29. Thank you. I didn't have the energy to deconstruct sarisataka's many misleading points

nm

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Response to sarisataka (Reply #23)

Sat Aug 10, 2019, 08:16 PM

28. 1938 DoJ amicus brief to 1939 supreme court

sarisataka: The amicus brief would be relevant if the language of the brief was quoted, or even paraphrased, in the decision. It was not.

Pffft. There were dozens of notations within the DoJ amicus brief advice, which the 1939 supreme court did not mention in the miller decision. But the supreme court ruling did mention several opinions from DoJ's amicus brief, which indicates they both were on the same page regarding the militial interpretation of 2ndA.

Miller 1939 decision: The Militia which the States were expected to maintain and train is set in contrast with Troops {standing army} which they were forbidden to keep without the consent of Congress.

DoJ 1938 amicus brief: Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its {militial} infringement by Congress

Miller decision: "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.

DoJ amicus brief: under the common law of England and of this country. In both countries the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security.

Miller decision: Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that {2ndA} guarantees to the citizen {concomitantly in the broad sense here} the right to keep and bear such a weapon.

DoJ amicus brief: Sawed-off shotguns, sawed-off rifles and machine guns are clearly weapons which can have no legitimate use in the hands of private individuals.

If you want a reason for why 1939 supreme court did not specifically mention DoJ's citing adams & 'no individual right', perhaps it was to recognize the dichotomy which existed in 1939 (& long prior), between the individual & militia interpretations within state constitutions, which would preclude federal interference:

1939 miller: Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seems to afford any material support for the challenged ruling of the court below. https://guncite.com/miller-brief.htm

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Response to jimmy the one (Reply #28)

Sat Aug 10, 2019, 08:19 PM

32. Wow. DOJ 1938: "2nd A does not grant to the people the right to keep and bear arms"

DoJ 1938 amicus brief: Second Amendment does NOT grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its {militial} infringement by Congress

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Response to sharedvalues (Reply #32)

Sat Aug 10, 2019, 08:34 PM

40. And finally we come to agreement

Just as the First Amendment does not grant any rights, but simply enumerates several, the Second Grant's no rights.

DoJ 1938 amicus brief: Second Amendment does NOT grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its {militial} infringement by Congress


The entire BoR is a restriction on the government.

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Response to sarisataka (Reply #40)

Sat Aug 10, 2019, 11:11 PM

45. ? What?

Please reread what you’re saying.


Also reread the OP’s article. Your points are addressed there.

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Response to sarisataka (Reply #40)

Sun Aug 11, 2019, 02:23 AM

49. bor both guarantee of rights & limitation on congress

sarisataka: Just as the First Amendment does not grant any rights, but simply enumerates several, the Second {amendment} Grant's no rights.

The 2nd amendment & the other amendments in the bill of rights do not 'grant' rights, but both 1) protect individual* rights and 2) prohibit congress from infringing upon them.
*In the 2ndA case, the individual 'right' was to belong to a militia for common defense.

link: DoJ 1938 amicus brief: Second Amendment does NOT grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its {militial} infringement by Congress

Correct, the 2ndA does not 'grant' a right to keep bear arms, it 'protects' that right - recognizes that right - within the militia sense, from congressional & other infringements. Note the 'and' in the above citation.

sarisatake: The entire BoR is a restriction on the government.

Along with a protection of individual rights:

encyclopedia britannica: Bill of Rights, in the United States, the first 10 amendments to the U.S. Constitution, which were adopted as a single unit on Dec 15, 1791, and which constitute a collection of mutually reinforcing guarantees of individual rights and of limitations on federal and state governments. http://www.britannica.com/EBchecked/topic/503541/Bill-of-Rights

Wm Rawle, 1829, A view of the constitution, all caps in link, not my emphasis: CHAPTER X. OF THE RESTRICTIONS ON THE POWERS OF CONGRESS — AND ON THE EXECUTIVE AND JUDICIAL AUTHORITIES — RESTRICTIONS ON THE POWERS OF STATES AND SECURITY TO THE RIGHTS OF INDIVIDUALS
Of the amendments already adopted, the eight first in order fall within the class of restrictions on the legislative power, some of which would have been implied, some are original, and all are highly valuable. Some are also to be considered as restrictions on the judicial power.
The constitutions of some of the states contain bills of rights; others do not. A declaration of rights, therefore, properly finds a place in the general Constitution, where it equalizes all and binds all.
http://www.constitution.org/wr/rawle_10.htm

wiki: The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. Proposed to assuage the fears of Anti-Federalists who had opposed Constitutional ratification, these amendments guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and reserve some powers to the states and the public. http://www.democraticunderground.com/1172167980

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Response to jimmy the one (Reply #28)

Sat Aug 10, 2019, 08:47 PM

41. We may be reaching the same point

DoJ 1938 amicus brief: Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its {militial} infringement by Congress 

The Amendment does not grant a right but recognizes the prior existence. True for all rights.

Miller decision: "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence. 

Note the wording, adult male inhabitants to possess arms.
Not the militia, not to keep the lock under government control but to possess.

I am not, as you seem to think, arguing there was prior to Heller a ruling that there was and individual right to bear arms. There was not. My point is that there never was a ruling that ownership of arms was dependent upon militia membership.


I will make note of these references. It shows by Court rulings and DOJ briefs that statements indicating ownership of arms is solely dependent upon being a militia member or the idea that the arms must be kept under government control is pure fiction. Thank you for this.

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Response to sarisataka (Reply #41)

Sat Aug 10, 2019, 10:42 PM

43. scalia mischaracterized england's 'have arms' decree of 1689

sarisataka: the {2nd} Amendment does not grant a right but recognizes the prior existence. True for all rights.

The bill of rights both limits congress as well as protects (not grants) individual rights; in the 2ndA case it limited congressional infringement, as well as protected, when written, for white males, the 'individual' right to belong to a well regulated militia, as was their civic duty per 2ndA & militia act of 1792.
______________________________

Miller decision: "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.

sarisataka: Note the wording, adult male inhabitants to possess arms. Not the militia, not to keep the lock under government control but to possess.

Along with ignoring 'cooperate in defence', the flaw in your reasoning is the same as joyce malcolm's:

Amici Curiae (21 british scholars) have an interest in the (2008 scalia led supreme) Court having a well-informed and accurate understanding of the Anglo-American tradition to “have arms” from which {2ndA} originated:
The US Supreme Court correctly found that the English right to “have arms” was an expression of the same right that has “long been understood to be the predecessor to our Second Amendment.”
II. THE ALLOWANCE OF A RIGHT TO “HAVE ARMS” SET FORTH IN THE 1689 DECLARATION OF RIGHTS WAS THE PRECURSOR TO THE SECOND AMENDMENT.


contrary to discredited scholarship upon which Heller [decision] relied, the right to “have arms” embodied in the English Declaration of Rights did not intend to protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term “self-defense”).
Rather, it referred to a right to possess arms in defense of the realm.The “have arms” provision in the [1689] English Declaration of Rights .. provided two protections to the individual. First, the right to “have arms” gave certain persons (qualified Protestants) the right to possess arms to take part in defending the realm against enemies within (i.e., Catholics) as well as foreign invaders.
Second, the grant of a right to “have arms” was a compromise of a dispute over control of the militia that gave Parliament concurrent power (with the sovereign) over arming the landed gentry. It allowed Parliament to invoke its right of “self-preservation” and “resistance” should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.

Where the Court erred was by interpreting the quoted terms in a manner divorced from their historical context, reading “individual” to mean “private,” “defence” to mean “defense against harm by private individuals acting for private purposes” and equating “self-preservation” with the modern usage of the term “self-defense.
In doing so, the Court relied heavily on the scholarship of Joyce Lee Malcolm. The overwhelming consensus among leading English historians, however, is that Malcolm’s work is flawed on this point.The origins of [2ndA] in the English right to “have arms” demonstrate that this right of self-preservation/self-defense gives individuals the right to collectively defend their public interests against organized assault or tyranny, not only in case of a foreign invasion, but, in 1689, in the event of a Catholic plot to overthrow English Protestants. Moreover, the right of “self-preservation” was to be exercised not by individuals acting privately or independently, but as a militia organized by their elected representatives, whether Parliament, the Boston Town Council, or otherwise.

...The term “self-defence” was used in the same sense: principled rebellion of the people against tyranny. Contrary to Malcolm’s view, the “have arms” provision was the result of a political dispute over whether ultimate control over the militia – the fighting force composed of qualified subjects of the realm – resided with the sovereign, or in Parliament. Immediately prior to the 1662 Militia Act, Parliament, not the sovereign, held control over militia.

Amici Curiae are scholars and professional historians whose collective expertise covers the following areas: the history of Stuart England, the Restoration, the 1689 Glorious Revolution, the American Revolution, the Early Republic, American legal history, American Constitutional history, and Anglo-American history. Each has earned one or more advanced degrees in history, political science and/or law.
I. THE SUPREME COURT SHOULD REEXAMINE PRIOR FINDINGS IN LIGHT OF SOUNDER SCHOLARSHIP WHEN INTERPRETING RIGHTS IN THE CONSTITUTION

https://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_08_1521_RespondentAmCuEnglishHistoriansnew.authcheckdam.pdf

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Response to jimmy the one (Reply #43)

Sun Aug 11, 2019, 01:15 AM

46. wrong as usual

Heller was not discredited. nor did it change any precedent. The Miller decision simply said sawed off shotguns are not useful for a militia or military, thus not Constitutionally protected.

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Response to gejohnston (Reply #46)

Sun Aug 11, 2019, 01:38 AM

47. cognitive dissonance

johnston: .. wrong as usual Heller was not discredited. nor did it change any precedent. The Miller decision simply said sawed off shotguns are not useful for a militia or military, thus not Constitutionally protected

Mr Johnston, nice person that you are, the post you replied to had little to do with heller nor sawed off shotguns. and only mentioned miller decision in citing the English point of view & as a cooperative militia system in england, not what you alluded to.
I can link you to websites which might be of assistance to coping with cognitive dissonance.
Just ask.

cognitive dissonance: the state of having inconsistent thoughts, beliefs, or attitudes, especially as relating to behavioral decisions and attitude change.

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Response to jimmy the one (Reply #47)

Sun Aug 11, 2019, 02:03 AM

48. No, I said what the Miller decision said

and has nothing to do with Heller. Heller cited the writings of the Founders, didn't say shit about the English BoR, which said only Protestants may have arms. It was still an individual right.

Again, your reading comprehension, or cognitive bias, needs to taken care of. Cognitive dissonance describes every ideologue and tribalistic partisan I know.

Come back when you can argue facts and reason. Be we both know that without logical fallacies and intellectual dishonesty, the billionaires and corporations supporting your side have nothing.

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Response to gejohnston (Reply #48)

Sun Aug 11, 2019, 02:38 AM

50. just ask

johnston: No, I said what the Miller decision said and has nothing to do with Heller.

Well done Mr Johnston! That's because the miller decision came 69 years before the heller decision.
You did very well in that post, up to then. I am so proud of you!

Here's where you went wrong mr Johnston. Now don't get upset, we all make mistakes now & then:

johnston: Heller cited the writings of the Founders, didn't say shit about the English BoR, which said only Protestants may have arms. It was still an individual right.

Writing for the majority, Antonin Scalia {in heller decision} argued that the operative clause of the amendment, “the right of the people to keep and bear Arms, shall not be infringed,” codifies an individual right derived from English common law and codified in the English Bill of Rights (1689).
near the top: https://www.britannica.com/event/District-of-Columbia-v-Heller

Please mr Johnston, just ask, & I will help.

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Response to jimmy the one (Reply #50)

Sun Aug 11, 2019, 07:56 AM

51. why aren't you citing the decision itself?

https://www.scotusblog.com/case-files/cases/dc-v-heller/

Either way, assuming he did, both BoR are individual rights, retained by the individual against the State. The concept of collective rights did not exist.

https://en.wikipedia.org/wiki/Bill_of_Rights_1689
Arms ownership is an individual right, by some, for self defense. Of course, it isn't worth the paper its written on today since England is a surveillance state where saying the wrong thing on Twitter will bring the police to the door.

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Response to gejohnston (Reply #51)

Sun Aug 11, 2019, 10:38 AM

52. Obvious answer: Because, when read in full, it doesn't say what James claims it says.

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Response to gejohnston (Reply #51)

Sun Aug 11, 2019, 06:02 PM

54. defence, english style

gejohnston: Arms ownership is an individual right, by some, for self defense.
https://en.wikipedia.org/wiki/Bill_of_Rights_1689

johnston's wiki link above: It {1689 bor} sets out certain rights of individuals including the prohibition of cruel and unusual punishment and reestablished the right of Protestants to have arms for their defence within the rule of law.

Having an unfettered individual right to keep & bear arms is not the same as having an individual right to bear arms in militia for king & country, within the rule of law - the king's rules & regulations, or parliaments. Big Diff.
The 2nd amendment's predecessor was the 1689 english bill of rights, as per scalia.

I guess it would be futile to repost what the british scholars wrote about the english meaning of 'defence' in 1689, some people's thick heads cannot be penetrated with repeated reason or logic.
hail futility, here it is: https://www.democraticunderground.com/?com=view_post&forum=1172&pid=208465
_____________________________________________

You trying to ignore this gj? I won't let it go away till I get an explanation about this contradiction by you:

johnston: First, the Founders did n... Second, they {the founders} never wrote any gun control laws,.
https://www.democraticunderground.com/?com=view_post&forum=1172&pid=208426

and what you wrote 4/2017: We have had gun control since the founding not always for the best reason..https://www.democraticunderground.com/?com=view_post&forum=1172&pid=203112

Peek a boo, I see you

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Response to jimmy the one (Reply #54)

Sun Aug 11, 2019, 06:27 PM

55. No contradiction there, save in your own mind

gej was quite accurate when he said the founders wrote no gun control laws- it was the various states and lesser polities that did so after the founding.

IIRC, there wasn't any Federal regulation of civilian firearms until the National Firearms Act of 1934.

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Response to jimmy the one (Reply #54)

Mon Aug 12, 2019, 07:48 AM

57. not mutually exclusive

I guess it would be futile to repost what the british scholars wrote about the english meaning of 'defence' in 1689, some people's thick heads cannot be penetrated with repeated reason or logic.
a legal brief is not a refutation. You "logic and reason" is not logic nor reason.



johnston: First, the Founders did n... Second, they {the founders} never wrote any gun control laws,.
They didn't. There were none on the federal level nor proposed by any Founder in the states.

and what you wrote 4/2017: We have had gun control since the founding not always for the best reason
Gun control in most of the world is class based, create economic barriers from the working and lower working classes from owning guns. States, mostly in the South, did pass laws aimed at blacks and lower class whites.

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Response to gejohnston (Reply #57)

Mon Aug 12, 2019, 09:42 AM

58. plausible enough

johnston: States, mostly in the South, did pass laws aimed at blacks and lower class whites.

Fair enough, plausible enough to get you past a true contradiction, as icon pointed out as well.
What you wrote in your very post prior to above sentence, is just a typical failure to comprehend what was put before you.

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Response to jimmy the one (Reply #58)

Mon Aug 12, 2019, 05:04 PM

60. the comprehention problem is strictly yours,

or at least a failure of critical thinking and complex thought. The Founders did not include every individual nor politician at the time. The Founders were, as most Americans understand it, refer to the drafters of the DoI and Constitution.
Not a hard concept to grasp.

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Response to sarisataka (Reply #41)

Sun Aug 11, 2019, 11:17 AM

53. based on england's 'assize of arms'

1939 Miller decision: "In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence.

sarisataka: Note the wording, adult male inhabitants to possess arms. Not the militia, not to keep the lock under government control but to possess.

Note the wording above 'assize of arms' within what the 1939 supreme court wrote re miller case.

The Assize of Arms of 1181 was a proclamation of King Henry II of England concerning the obligation of all freemen of England to possess and bear arms in the service of king and realm and to swear allegiance to the king, on pain of "vengeance, not merely on their lands or chattels, but on their limbs".
The assize stipulated precisely the military equipment that each man should have according to his rank and wealth. The assize effectively revived the old Anglo‐Saxon fyrd {militia style} duty. The Assize established restrictions on weapon ownership by Jews, terms of inheritance, and prohibition of exports of arms, ships and timber. https://en.wikipedia.org/wiki/Assize_of_Arms_of_1181

Every knight was forced to arm himself with coat of mail, and shield and lance; every freeholder with lance and hauberk, every burgess and poorer freeman with lance and iron helmet. This universal levy of the armed nation was wholly at the disposal of the king for the purposes of defence.
... By his Assize of Arms Henry restored the Ancient Anglo-Saxon Militia System, and supplied the requisite counterbalance to the military power of the great feudatories, which, notwithstanding the temptation to avoid service by payment of scutage, they were still able and too willing to maintain.


The idea of militia goes back to English traditions beginning with the Assize of Arms in 1181: “He will possess these arms and will bear allegiance to the lord king, Henry, namely the son of empress Maud, and that he will bear these arms in his service according to his order and in allegiance to the lord king and his realm.” This was further reinforced in 1285 with the Statute of Winchester in 1285: “Every man shall have in his house arms for keeping the peace according to the ancient assize.”https://angrystaffofficer.com/2017/03/20/a-short-history-of-the-militia-in-the-united-states/

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Response to sharedvalues (Original post)

Sat Aug 10, 2019, 01:41 PM

15. What other right is a collective right?

Bear in mind that the Republicans would love to see voting declared a collective, rather than an individual, right, and are working towards that every day... because THEY are running things in many states and the federal judiciary.

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Response to sharedvalues (Original post)

Sat Aug 10, 2019, 08:15 PM

26. But Scalia claimed to be an originalist.

And to make his interpretation fit, he had to discard 1/2 of the actual wording of the Amendment as merely prefatory.

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Response to guillaumeb (Reply #26)

Sat Aug 10, 2019, 08:18 PM

31. Yes. Scalia was a right-wing partisan and his "originalism" was just a front

https://www.nybooks.com/daily/2016/02/27/the-scalia-myth/

Scalia’s ability to bring the Constitution’s text, structure, and history to the very center of the nation’s conversation through elegant and colorful prose should never be confused with the idea that his “originalist” methods actually served the disciplining and constraining functions he attributed to them. Nor should we permit his captivating rhetoric to seduce us into accepting the judgments he claimed those methods required him to reach. I see him, with great respect, as a worthy adversary—but an adversary all the same—of the just and inclusive society that our Constitution and laws should be interpreted to advance rather than impede. Method is insufficient to determine, much less eclipse, outcome when the Court confronts the most significant and difficult questions that the Constitution and federal statutes leave open.

Because ours is a constitutional democracy and not a purely majoritarian system, I have never been convinced that constraining the judiciary is a constitutional end in itself—much less an end to be valued above all others. But even if it were, depicting Scalia’s interpretive methods as more rigorous than others—in the sense that they better restrict judges by rendering their substantive visions of justice and decency less relevant—is an exercise in self-delusion: even in Scalia’s own opinions, text, context, and history were often far less determinate than he liked to assert.

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Response to sharedvalues (Reply #31)

Sat Aug 10, 2019, 08:20 PM

33. Scalia had an agenda,

and he was willing to eliminate sentences he did not agree with. And he called this being an originalist. He was what the right claims to despise. He was a judicial activist.

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Response to guillaumeb (Reply #33)

Sat Aug 10, 2019, 08:22 PM

35. Oh no question, he was a judicial activist. Exactly

Also he died on a rightwing-billionaire-funded gun junket. No federal employee would have been able to accept that junket due to ethics rules prohibiting bribery. But Supreme Court judges can do it. What a joke he was.

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Response to sharedvalues (Reply #35)

Sat Aug 10, 2019, 08:28 PM

38. Thomas is just as bad. So many conflicts of interest. eom

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Response to guillaumeb (Reply #38)

Sat Aug 10, 2019, 11:09 PM

44. Yes. His wife is an insane rightwing crazy.

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Response to sharedvalues (Reply #35)

Sat Aug 10, 2019, 09:02 PM

42. Funny,

All of the gun control efforts are funded by billionares. Paul Allen funded Washington's refendom. Bloomberg astroturfs MDA. That is before you get to the corporate money funding the Parkland stage show.

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Response to sharedvalues (Original post)

Mon Aug 12, 2019, 01:31 PM

59. Been following this

thread for a while and I would like to give a couple of articles for both sides to read from Akhil Reed Amar who looks at the 2nd Amendment away from kneejerk reactions.

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1250&context=lcp

https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1836&context=fss_papers

Read and reflect

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Response to melm00se (Reply #59)

Mon Aug 12, 2019, 05:44 PM

62. Yes

results ofthis holistic study may surprise folks on both sides ofthe aisle. Contrary to NRA ideology, the Founders' Second Amendment, by itself, provides only slender support for a robust individual right to own all manner ofguns. Later constitutional developments-in particular, the words and deeds of the Fourteenth Amendment-do in fact, when read in conjunction with the Second Amendment, support an individual right to have a gun in one's home for se1f- protection; but later developments also support other readings of the Second Amendment on topics far removed from the gun control debate. For example, when read in the light of our entire constitutional structure, including post- Founding amendments, the Second Amendment has some rather remarkable implications for issues such as women in combat and gays in the military. And so, to both conservatives who now love the Second Amendment and liberals who now loathe it, I say, think again: the Amendment may not quite mean what you thought.

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Response to melm00se (Reply #59)

Sun Aug 18, 2019, 12:02 PM

64. Yup. "Only slender support for individual right to own gun"

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Response to sharedvalues (Original post)

Mon Aug 12, 2019, 05:06 PM

61. This idea of a collective right is so interesting to me.

And by interesting, I admit that I am still trying to understand what it means, or if it is just meaningless words. So I will state in modern plain English what I think proponents of the "collective right" interpretation are saying:

"There is no individual right to own or keep firearms. But there is a right held by the collective, exercised by the states, to have a well regulated militia that is separate from any standing federal army. Well regulated in this context refers to order, discipline and control, and does not mean 'well equipped'. This is how all reputable legal scholars interpreted the 2nd Amendment prior to the late 20th century. Oh, and Scalia was not an originalist."


Did I get that right? Please tell me if I did not. For now I will proceed as if that is the "collective right" interpretation.

My first observation is that if our states are supposed to exercise this right through our well regulated militias, where are those well regulated militias? Today they are called the National Guard. They are nominally controlled by the states, but it is my understanding that they can be federalized at any time, and then they are essentially a reserve component of the standing federal army. This situation has arisen because Congress has passed laws pursuant to their Article 1 powers related to the militia. But since the collective right to bear arms was recognized by amendment, that amendment would seem to place a restraint upon Congress' power to take federal control of a militia. So could a state, pursuant to the 2nd Amendment, refuse to have its militia placed under federal control? Under the "collective right" interpretation, it would seem so.

My second observation is that the well regulated militia is essentially a police force for keeping order, protecting life and property, and augmenting the local civilian police during times of natural disaster and civil disorder. But it is my understanding that the states were always understood to have general police powers to enforce their laws. So if the purpose of the 2nd Amendment was to protect the state power to police itself, I have two points: (a) It is so interesting that in a Bill of Rights, we have found inserted a grant of police power, and (b) this would seem to mean that the repeal of the 2nd Amendment would cause the states to lose some of their police power.

So let us suppose that Heller never happened, and the "collective right" interpretation had gone unchallenged. Suppose under those conditions, we were able to repeal the 2nd Amendment. What would change as to the state collective rights and powers? What would change as to relationships between the federal government and the states? Something would have to change, or else that would mean the 2nd Amendment had been meaningless. And it is absurd to think that a meaningless item would have been inserted in the Bill of Rights. Now, you could argue that the 2nd Amendment is unnecessary in the way that we might think of the 3rd Amendment. The federal government doesn't go around trying to force us to give room and board to soldiers, so who needs the 3rd Amendment? Yet, if it were repealed, it would indeed remove a legal barrier to the quartering of soldiers in homes. Under the "collective right" interpretation, what legal barrier would be removed with the repeal of the 2nd Amendment?

My last point is that the argument that the individual-right interpretation has only prevailed recently in the courts, and is therefore wrong for that reason, is weak and illiberal. Brown v. Board of Education went against Plessy v. Fergeson. Did that make it wrong, in your opinion? Roe v. Wade expanded the traditional interpretation of 4th Amendment privacy, preventing states from interfering in abortions in the way they had been for over a century. Does that mean that Roe v. Wade was wrong, in your opinion?

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Response to sharedvalues (Original post)

Fri Aug 23, 2019, 10:07 AM

65. Considering the legal treatment of GLBT, minorities, women and minors

up to that point, I do not think celebrating the judicial mind of the time is really that great of a point.

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